Rufus Ervin v. Don Roper , 153 F. App'x 402 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1430
___________
Rufus J. Ervin, Sr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Don Roper, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: September 30, 2005
Filed: October 26, 2005
___________
Before MELLOY, MAGILL and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Rufus J. Ervin, Sr. petitioned the district court for a writ of habeas corpus. The
case was initially assigned to The Honorable Mary Ann L. Medler, United States
Magistrate Judge for the Eastern District of Missouri. It was then assigned to The
Honorable Carol E. Jackson, Chief Judge, United States District Court for the Eastern
District of Missouri. It was then referred to The Honorable Lewis M. Blanton,
Magistrate Judge for the Eastern District of Missouri, pursuant to 28 U.S.C. §
636(b)(1), for “report and recommendation on dispositive matters and for rulings on
all non-dispositive matters.” Ervin later filed a motion to appoint counsel which was
denied without prejudice. Ervin then filed a motion for reconsideration of the denial
of his motion to appoint counsel. This motion was also denied without prejudice.
Ervin timely appeals the denial of his motion to appoint counsel and moves for the
appointment of appellate counsel.
If a magistrate judge is assigned a case pursuant to 28 U.S.C. § 636(c), which
requires the consent of both parties, the decisions of that judge may be appealed to
the United States Court of Appeals in the same manner as if they are judgments of the
district court. 28 U.S.C. § 636(c)(3). However, when, as here, the magistrate judge
is referred the case pursuant to 28 U.S.C. § 636(b), the parties may not appeal directly
to this court from an order of the magistrate judge. Loewen-America, Inc. v. Advance
Distrib. Co., 673 F.2d 219, 220 (8th Cir. 1982). Because Ervin did not appeal the
magistrate judge’s decision to the district court, there is no final judgment by the
district court, and this Court lacks jurisdiction to hear the appeal. Id.; Daley v.
Marriott Int’l, Inc., 415 F.3d 889, 893 n.9 (8th Cir. 2005) (“[W]hen . . . a litigant
could have tested a magistrate’s ruling by bringing it before the district judge, but
failed to do so within the allotted ten-day period [in Rule 72(a)], he [or she] cannot
later leapfrog the trial court and appeal the ruling directly to the court of appeals.”)
(quoting Pagano v. Frank, 983 F.2d 343, 346 (1st Cir. 1993)) (omission and second
alteration in original).
Even though this particular jurisdictional argument was not raised by either
party below, “when the record indicates jurisdiction may be lacking, we must
consider the jurisdictional issue sua sponte.” Bilello v. Kum & Go, LLC, 374 F.3d
656, 659 (8th Cir. 2004). Thus, for the foregoing reason, we dismiss the appeal for
lack of jurisdiction. Consequently, Ervin’s pending motion for appointment of
appellate counsel is dismissed as moot.
________________________________
-2-